The discenting judge explains his reasoning in an opinion piece. In short:
I cast the dissenting vote because the county engineer has intertwined public records with proprietary software and expects citizens seeking public records to pay an exorbitant price to untie the knot. A person seeking pubic records should expect to pay the price for copying the records, but not the price for a pubic entity’s mistake in purchasing inefficient software.
Will every citizen asking for what Robert Gambill sought – access to records that the majority acknowledged are public records – also have to pay $2,000? The decision in this case encourages public entities desiring secrecy to hide public records within a software lockbox and require individual citizens to provide the golden key to unlock it.
---- original post 3/11/2013 ---
According to information released from Scioto County Prosecutor Mark Kuhn’s office, “The Supreme Court of Ohio in a 6-1 decision yesterday (Thursday) ruled that Craig Opperman, Scioto County Engineer, did not have to give Portsmouth real-estate appraiser, Robert Gambill, a copy of the Scioto County Engineer’s electronic database of tax maps and aerial photos of all Scioto County properties.”
Gambill, the real-estate appraiser, wanted access to individual paper maps of properties. In the past, he'd been able to get them from the engineer's office for a dollar or so. After Opperman took over as County Engineer, there were some bumps in getting the new maps out and says Gambill, they were to cost $3 each. If he wanted the raw database from which they were made, the fee would be $2000. That fee, Gambill alleged is beyond what's legal for public records. A previous suit on this matter was dismissed, but the recent one ended with a decision in favor of the Opperman and the County. The key issue: the connection of the database to proprietary copyrighted softaware.
According to released information from Kuhns office, “The items requested by Robert Gambill are intertwined with a copyright-protected software program at the Scioto County Engineer’s Office. The Scioto County Engineer’s Office did not have the capabilities to extract the information requested from the copyright-protected software, and could not copy the software because it was copyright-protected. In an effort to provide the information that Robert Gambill requested, Craig Opperman offered to have an outside computer firm extract the information requested from the copyright-protected software. The expense for having the information copied without the copyright protected software was $2,000 that Mr. Gambill refused to pay.”
In short, the county was within its rights to demand that fee.
The imporant upshot for Gambill, who does not intend to appeal the decision, is that the maps and data will soon be online for him (and others) to access:
According to information from Scioto County Auditor David Green’s office, a new website is expected to go online on March 18 that will have all of the county’s tax maps, sketches and photos available to the public.
The software in question is from Esri and the $2000 fee for separation is a quote from Woolpert. The dissenting judge offers this rebuttal quoted via Courthouse News Ohio:
Justice Paul E. Pfeifer dissented, stating that in his view “The county engineer in this case has intertwined public records with proprietary software and expects citizens seeking public records to pay an exorbitant price to untie the knot. A person seeking public records should expect to pay the price for copying the records, but not the price for a public entity’s mistake in purchasing inefficient software. … The holding in this case encourages public entities desiring secrecy to hide public records within a software lockbox and require individual citizens to provide the golden key to unlock it.”
This case does relate nicely to the Sierra Club suit against Orange County (ongoing so far as I know) which exempted GIS data from open data laws. (APB coverage)
- Portsmouth Daily Times
- See also: Supreme Court Rules County Engineer’s Response Met Requirements of Public Records Act
- Thanks to reader Nancy for letting me know about this decision.